This post is adapted from a law review article that may be downloaded here(citations available in the original).

Sir Matthew Hale and Sir William Blackstone explained that judicial opinions in England traditionally were a source of unwritten law, or lex non scripta, derived from custom and read from the bench but not transcribed in official reports or indexed in a formal corpus. Judicial opinions began as an oral medium, not a written record. They were considered evidence of what the law was, but not the law itself.

From the thirteenth to the fifteenth century, opinions were often written down, in French, and compiled in Year Books. Lawyers began citing opinions—some written, some unwritten—in their arguments before the courts, although there was no systematized mode of citation. As early as the fifteenth century, lawyers produced abridgements, or digests, to review the state of the law across England. These sketchy compilations summarized and classified opinions and could be referenced in the courtroom as authority for particular propositions. During the fifteenth and sixteenth centuries, a comprehensive scheme of methodical and widespread adherence to written precedent emerged gradually by slow degrees. However, not until the sixteenth and seventeenth centuries did judges and litigants treat opinions as authoritative and binding in a manner that resembled the modern sense of precedent. The publication of Sir Edward Coke’s Institutes of the Lawes of England over the course of nearly two decades during the early seventeenth century provided direction for both jurists and attorneys who wished to substantiate their arguments with concrete holdings. Still there were no certified court reporters or verbatim transcriptions; the enterprise of publishing reports or digests was often personal and selective, insofar as reporters often chose to record only cases they liked and to disregard cases they disliked.

From approximately 1600 to 1800, the British House of Lords enjoyed supreme appellate jurisdiction over cases in common-law and equity courts. During that time, the House of Lords did not publish reports of its decisions, seriatim or otherwise. Most cases were ultimately determined by intermediate appellate courts, including the Exchequer Chamber, the Court of Common Pleas, and the King’s Bench, which regularly issued seriatim opinions that were transcribed by reporters. Prior to American independence from Great Britain, appeals from colonial courts went before the Privy Council in England. The Privy Council reached decisions by majority vote but issued those decisions as unified pronouncements, regardless of dissenting views. Because all decisions of the Privy Council were subject to the King’s review, and the King, the site and symbol of the law or body politic, could not articulate simultaneous, contradictory positions, the appearance of unanimity within the Privy Council was paramount.

In its early years, after the adoption of the Judiciary Act of 1789, the United States Supreme Court (“the Court”), following the practice of English common-law courts—specifically the King’s Bench—typically rendered decisions in the form of per curiam and seriatim opinions. The near obligatory practice of rendering written opinions was an American innovation and a departure from the English custom of residual orality. The fact that the United States Constitution was written perhaps necessitated the textual documentation of judicial opinions in books, digests, and reports.

During the tenure of Chief Justice Oliver Ellsworth (1796–1800), the third Chief Justice of the Court, seriatim opinions became less common and were abandoned during the tenure of Chief Justice John Marshall (1801–1835), who orchestrated consolidated opinions among the justices, much to the chagrin of Thomas Jefferson. Justices who concurred with the prevailing rationale no longer authored a separate opinion to express their agreement. Justice William Johnson, a Jeffersonian Republican, was the notable exception, authoring nearly half of the dissents that were produced by members of the Court during his tenure on the bench. Chief Justice Marshall, for his part, authored most of the Court’s majority opinions, which were issued with the phrase “opinion of the Court” to lend the impression that the justices spoke with one voice. Collegiality and consensus-building must have been a high priority because, after work hours, the justices resided and dined together in a small boardinghouse on Capitol Hill, away from their families, where court conflicts could have incited personal quarrels. Abandoning the seriatim mode and dissenting opinions also quickened the publication process; over a quarter of the cases decided by opinion between 1815 and 1835 were published in no more than five days.

The period late in Chief Justice Marshall’s tenure to approximately 1905 involved the rise of dissenting justices. Chief Justice Marshall himself began to author dissents as the Court increasingly decided cases through majority rather than unanimous opinions. Dissents proliferated during the mid-nineteenth century and into the twentieth century. Justice John McLean and Justice Benjamin Curtis authored memorable dissents in Dred Scott v. Sandford. Forty-eight years later, Justice Oliver Wendell Holmes Jr.’s three-paragraph dissent in Lochner v. New York became one of the most influential legal writings in American history. Blackstone’s conviction that opinions were evidence of law but not actually law continued to some extent throughout the nineteenth century, yet it had been diminishing since the mid-eighteenth century. The notion of “caselaw,” or the idea that judicial opinions constituted law, did not gain currency until the twentieth century. Today it is mostly accepted without question or qualification.

The twentieth century ushered in the era of the “Great Dissenter,” a label that has been conferred on Justice Holmes and Justice John Marshall Harlan. By the 1940s, most cases involved separate opinions. Dissents and separate writings are now common. A jurist’s reasoning and argument typically enjoy precedential effect, but historically, under the English tradition of the common law, the judgment of the opinion was authoritative, and later courts could disregard the analysis from which that judgment followed. The results of an opinion, in other words, took priority over its reasoning.

A Shakespearean proficiency in meter and rhetoric may to F L Light be ascribed. Nearly forty of his dramas are now available on Amazon, and twenty have been produced for Audible. His Gouldium is a series of twenty four dramas on the life and times of Jay Gould which he followed with six plays on Henry Clay Frick. The whole first book of his translation of The Iliad was published serially in Sonnetto Poesia. He has also appeared in Classical Outlook and The Raintown Review. Most of his thirty five books of couplets are on economics, such as Shakespeare Versus Keynes and Upwards to Emptiness the State Expands.

For his defense in this part of the play, Raleigh asserts that two witnesses are required for the charge of treason.

Raleigh: The primacy in law is presence,
The testifying presence of a man
Where answers and rejoinders in a court
Proceed, procedurally set right in full
Protection of the truth. Not one but two
For treason are required. This case without
Accusers here illicit must become.
Illegal litigation the Attorney
General of England never should allow.
If no premeditated certitude
You mean in court, let my accusers come
Before me. The sheerest hearsay you assert
In court, if now unsifted inferences
Obtain without an oath, with no subscription,
Nothing demonstrable in testified
Exposure of the truth, simply enlarged
Upon a paper imputation by
A desperate man. How should unscrutinized
Reproaches credible remain unless
The Jesuit Inquisition you regard
As just? Were Cobham dead or gone abroad,
No case you’d have. But in this very house,
Winchester Castle, he abides. My lords,
Perpend how over-guessed assumptions are
Not rare in court, and lightless allegations,
Of darkling likelihood, have dazzled lawyers.
Why, Sir John Fortescue, of reverend estimation
As a Chief Justice in this realm, relates
How in his time a judge condemned a wife
At Salisbury for her husband’s death upon
Gratuitous prejudice to peasants or
On the suppositious sophistry of looks
Or likely baseness in the wife, whom one
Accuser had belied. But he that killed
Her husband was discovered after she
Was burned. The judge that had her die then told
Sir John the mordant penance of his mind
Would never pall in conscientious smart
With caustic memories. And you, Sir John
Popham, are too exultant in damnations
To regret my doom.

Popham: The damnedest imputations you
Deserve, far prouder to exalt prodition than
All traitors heretofore.

Raleigh: By fallible
Ferociousness your wisdom may default.
You’d proudly consummate your preconceptions.
And if you say the statutes I adduced
Before abide no longer in the courts,
Because religious mutability
Required removes, yet faultless equity
Remains in them, not failing reason. Now
Impartial exemplarity you lawyers find
In them, and for the common law they are
Considered sacred. Jurists never doubt
In Deuteronomy that one condemner shall
Not doom for his enormities a man,
But double attestations may suffice
Or triple for attesting treason to
A judge. There’s no dissentient scripture, old
Or new, thereon. Thus by the law of God
No men are immaterial nullities
In court. Untenable disgrace they need
Not suffer from one man.

Popham: Sir Walter Raleigh,
No statute you adduced can aid you now.
Those of Edward the Sixth no longer hold,
Too inconvenient for convictions, all
Repealed by Philip and Mary when their fires
Began. As the Chief Justice of this realm,
I know the common law’s commensurate
Extents to measure treason. Here in court
One requisite assertion that attests
To treason is enough. And, should one
Accomplice carry allegations how
The others were conjoined, that proof will hold.
But he that blames himself before he blames
Another cannot be denied in court,
For mouthed authority demonstrable.

Warburton: I muse, Sir Walter, measurably considerate
As you are, how you stretch yourself to stress
This point, for horse-thieves never could be judged
Thereby, requiring witnesses. By law
Upon deduced presumption we condemn
The guilty or on circumstantial presence
Or incidental revelation we
May judge events. Should regicidal gore
Not prove a swordsman guilty who had been
In covert presence with a king? He’d be
Too sanguinary for misjudgment, Sir.
No inquisition requisite therefore!

Raleigh: Yet by the common law, my lord, all trials
Of fact by juries and witnesses proceed.

Raleigh: As you
Conceive the law therewith, I cannot grasp
The incongruity unknown to me.

Popham: Nay, Sir, the law is not conceived by us
But known in full.

Raleigh: My lord, so how so laws
Suffice in process, here I suffer life
Or death thereby. Not with insufferable
Exorbitance should English rigor be
Enforced. At his asserted coronation
King James to nurture equity in England
And not fixed rigor force has sworn. And as
Benignant furtherance he would effect
In law, so should his ministers and judges no
Less happy prove.

Popham: Procedural monarchy
Provides you equity. But our judicial course
Will be confined to justice.

A Shakespearean proficiency in meter and rhetoric may to F L Light be ascribed. Nearly forty of his dramas are now available on Amazon, and twenty have been produced for Audible. His Gouldium is a series of twenty four dramas on the life and times of Jay Gould which he followed with six plays on Henry Clay Frick. The whole first book of his translation of The Iliad was published serially in Sonnetto Poesia. He has also appeared in Classical Outlook and The Raintown Review. Most of his thirty five books of couplets are on economics, such as Shakespeare Versus Keynes and Upwards to Emptiness the State Expands.

The clerk has recited an affidavit by Lord Cobham, in which he blames Raleigh for the Main Plot. William Watson, a priest, was the chief inciter of the Bye Plot. Lord Popham is the presiding justice at this trial.

Raleigh, to deliver himself from Tyburn, where traitors were executed, holds forth as far as he can.

Raleigh: Now, candid jurymen, conduct yourselves
By equitable accuracy, measuring
Each side. Coke’s imputational omnipotence
In wholeness of assertion is in this
Pretentious affirmation put. He calls
This version evidential verity.
This either quails me or discomfiture undoes;
Either absolves my sufferance or means
In absolute privation my demise;
Either exalted exculpation offers
Or vagrant indigence provides my wife
And children. This may manifest a traitor
Or a devout trustee defectless to
His king. But let me see this testament
That I may answer with defensive doubt.

Popham: Sir Walter Raleigh may examine it.

Raleigh: A wakeful answer, vital likelihood
Providing, should evoke intelligence
In you. How Cobham, the accuser, came
To say this I’ll profess. The Privy Council would
With perceant queries penetrate if Cobham
And myself combined for Aremberg’s conditions
Or of the deadly priestliness in Watson were
Apprised or whether plotted discipline,
Designed for Lady Arabella, we
Suspected. Guiltless verities I gave
The Privy Council, in pronouncement free
From priests and clear of plots. But soon, when I
Came home, I wrote to Henry Lord Cobham how
I wondered whether Aremberg advised him,
Who years ago in Flanders with that Count
Conferred. And twice that summer, having supped
With us at Durham House, Lord Cobham could
Be seen into LaRenzi’s place advance,
Who is a scribal henchman of that Count.
This news was in my letter sent. But I
Was told by Robert Cecil not to speak
Of this because King James would not offend
The Count. So when Sir Robert showed this letter
To Lord Cobham, a combustion of defense
Possessed him. With inflamed recrimination
He flared against me, caustic charges in
His shouts concerting. But he ceased, incensed
No longer, blame renouncing as mere blab,
Who then assured Sir Robert to absolve me.
A circumstantial stretch you made of this,
Master Attorney, that Lord Cobham lacked
Inductive likelihood, a dunce belike
Mistaking him. But never infantile
Inertia shows him nerveless, who asserts
In settled firmness his sententious will.
Impassioned suppositions he pursues,
Disposed to see his purposes dispatched.
And now, forbearing sanity, you say
In your absurd acuity I would plot
With him, a man of unbefriended chariness
And unattractive thrift, with him when I
Resigned perforce the Cornwall Wardenship
Of Stannaries and was enforced to do
Laborious dispossession of my rights?
My lords, eccentric ignorance I have
Not nurtured. This monarchal island I
Perceived was never so defensible,
With Scotland a united fortress having.
All Ireland has relinquished enmity,
Not breaching acquiescence north or south.
Denmark accords, negating her excess
By sea, provoking jealousy for cod
No longer. Now the plainest Netherlands,
Resemblant neighbors to our realm, at peace
Remain. And here, no dubious hesitations in
A Queen we suffer, she whom time surprised
And age suppressed, for now a forward king
Advances our attention to demands,
Who may by rightful coronation reign.

Popham: Come, sir, digressive hesitations cease
In court.

Raleigh: Lord Popham, on the pointed mark
I’d realize accuracy in the court,
With equitable pertinence conveyed.
Now I unwarranted discomfiture
Would never bear and undeserved absurdities
Would hear no more. A devil-headed raver,
England’s secured circumference assailing,
They say I am, the basest Robin Hood of hell,
Or a Wat Tyler warrior taking arms
Or like Jack Cade to jounce the uppermost
Security of kings. But now the penniless defaults
Of Spain I know, where impecunious nothingness
Abounds, in moneyless exorbitance
Unfit for war. Discouraged sentiments
Deny King Philip all belligerent
Regards for England. Have we not six times
Distracted him, in Ireland thrice triumphant
And in naval valor never failing thrice,
Even at Cadiz to devastate his coast.
As Captain for the Queen four thousand pounds
Of substance from myself I’ve spent in war,
Three prevalent events procuring while
You slept in peace. Now six or seven ships
In ports remain for Philip, a diminishment
Of fifty sails, who alien argosies
Must hire for the Columbus lands. No more
By thirty million crowns he weighs himself,
In overspent expansiveness expiring.
The neediest royalty in Europe now
Denies the Jesuits monetary grace,
All miscreant mendicants to make of them.
The lowest of inverted lordliness
He is, by meekest reconcilement now
With England to abide, who in devout
Felicitations at the recent crowning
Rejoiced complaisance to our king avowed.
Therefore in Spanish hardship would this prince
Six hundred thousand to an Englishman
Deliver without pledged securities
Or gaged collateral in pawn? When Queen
Elizabeth to her allies in Holland lent
Profusely, liens on Brill and Flushing she
Obtained. Dieppe no less she had in pawn
When France had borrowed from her purse a sum
For battles. And assure you, many goldsmith
Moneyers in London would not lend to her
Without avouched collateral in land.
Then say, my lords, what costly likelihood
For six hundred thousand could myself
Or Cobham give in pledge to Spain, myself
By meanest deprivation out of place?
As paroxysmal as appassionate,
The hottest exemplarity in hate
Of Spain I’ve shown. Would I betray my own
Biography? Would I upturn the tenor
Uppermost in me? I am the Raleigh,
English royalty fending from the Pope.
I am the Raleigh, anglophilic rectitude
Presenting, protestant heroics fain
To prove. I am the anti-papal archetype
Of England. Untransmutable antipathy
To Spain defines me. Read Guiana. Read
My Treatise on the Force of Spain in Flanders,
Which to his Majesty I gave, if he’d
Consult a warrior.

A Shakespearean proficiency in meter and rhetoric may to F L Light be ascribed. Nearly forty of his dramas are now available on Amazon, and twenty have been produced for Audible. His Gouldium is a series of twenty four dramas on the life and times of Jay Gould which he followed with six plays on Henry Clay Frick. The whole first book of his translation of The Iliad was published serially in Sonnetto Poesia. He has also appeared in Classical Outlook and The Raintown Review. Most of his thirty five books of couplets are on economics, such as Shakespeare Versus Keynes and Upwards to Emptiness the State Expands.

In November, 1603, Sir Walter Raleigh was for treason put on trial. Those charged with treason were not allowed lawyers. The prosecutor is Edward Coke, Attorney General of England.

Wolvesley Castle in Winchester, where the chief judicial officers of England and many peers of the realm are gathered. Sergeant at Arms Yelverton comes forth.

Yelverton: You English, conscientious quietude
Abide. In mutest comprehension mark This Court. Let your acuity be quieted,
Judicious silence in this cause permitting. Now let the Keeper here at Castle Wolvesley
Conduct the prisoner, Sir Walter Raleigh,
Into the court.

Raleigh is ushered into the court by the Keeper.

Popham: Name the commissioned magistrates
For watchful jurisdiction of this court.

Yelverton: It is
Alleged Sir Walter Raleigh in comprised
Inclusion with a clique conceived
And counseled a conspiracy, resolved
The presence of the King be done away,
With common dispossession of the King’s
Propriety; and he, considering seditious seizures
Of the state, by factious infestations would
Revolt effect, who’d raise mutations in
Religion, irreligious primacy
In England prompting, and who’d summon to
This island the amassed misanthropy
Of Spain at arms or an invasive sway
From Scotland. It is further stated that
Lord Henry Cobham met at Durham House
On June the Ninth with Raleigh to procure
For Arabella Stuart the crown of England.
There Raleigh readied the corruption of
Lord Cobham, bidding him confer with Charles
De Ligne, the Count of Aremberg, to draw
Six hundred thousand crowns from him, a sum
For Arabella’s royalty by revolt.
Above this, should Aremberg’s superior,
The Archduke Albert of the Netherlands,
Not have that sum, then to the king of Spain
Should Cobham pass; that Arabella should
In written briefs to Albert and King Philip
And even Savoy’s enthroned administration
Pledge a constant reconcilement held
By London and Madrid, and she must swear
The Papacy’s adherents may persist
In alien ritual of un-English use,
And that her marriage be imagined, moved
And warranted by Philip of Madrid.
And this declarative indictment claims
That Cobham on that ninth of June apprised
George Brooke, his brother, of these plots, assured
Of sibling likelihood therein. And said
That England never glows with lucre till
All Jacobean propagations be
Undone with James, the cubs and bear together;
That a book was lent to Cobham, drawn
From Raleigh’s shelves, purporting that the king
No ancestral validation could assume
For kingship in this realm; that Cobham on
The seventeenth of June then messaged Aremberg
For money with LaRenzi as the messenger;
That on the next day Count Aremberg agreed
Upon six hundred thousand as the sum,
Whereof eight thousand were for Raleigh’s use,
And ten thousand would George Brooke receive.
At these outstanding imputations what
Is your plea?

Raleigh: Not guilty, and I’ll put myself
Upon the country’s jurisdiction, fain
A jury of my peers may pass on me.

Yelverton: Would you assert a challenge to remove
Or question any jurors?

Raleigh: None of them
I know, but, as I sense appearances,
Forthright discrimination and direct
Discretion cannot be denied in them.
Faces of normal reason I regard
Among them, not afraid their rectitude
Will jar with mine. And as I know my plea
Is stainless, let this panel stand. I may
In confident indifference suffer them.
Yet here one wish you may accept as meet.
For you should know intense infirmities
Of late my readiness impair and leave
My memory faint. And thus the itemized
Indictment I would touch on and deny
By individual severalties, as they
Before the court come forth, or else I’ll not
Retain them till at last I may reply.

Coke: The evidential whole is stronger than
Her parts, and overwrought distinctions may
Disintegrate the rightful fullness we’ve
Embodied in this case. Distinguished parts,
When overstretched, constrained distortions put
Before us.

Raleigh: Undivided evidence
Can hardly be reviewed by a refuter.

Popham: Let the defendant with each single charge
Contend in sequence. By the common law
Judicial consummations come of parts.

E.M. Forster’s A Passage to India is in many ways about losing balance. Characters like Turton, Fielding, and Mrs. Moore represent centers of gravity, fixed between competing tensions and antagonistic binaries: reason and emotion, Indian and British, human and animal.

Situated between the nested oppositions, Turton, Fielding and Mrs. Moore denote compromised identity, the reconcilability of two cultures; as middle-markers they refuse rigid categorization and maintain symmetry in power relations. Instead of opening channels of communication and understanding, however, their mediating presence has tragic results: Turton goes crazy, Fielding loses hope and Mrs. Moore dies. These characters are necessary as fulcra; but when they align themselves with one binary or leave India altogether, they trouble the balance and stability of society writ large.

In a strictly separatist microcosm, they occupy the geometric center. When their positions shift, equilibrium breaks down: society becomes a mass of madness. The only go-between characters in the novel are English, suggesting that the story is a mirror held up to placate white guilt.

The demise of these characters in particular, and of Anglo-Indian relations generally, turns on the overarching, structural antinomy between reason and emotion that comes to a head during the abortive kangaroo trial. An interrogation of this antinomy and its collapse into muddledom reveals how law and justice in Chandrapore bear a systematic and determinative relation to race and gender.

The above text is adapted from an excerpt of my essay “‘Mass of Madness’: Jurisprudence in E.M. Forster’s A Passage to India,” published in Modernist Cultures, Vol. 6, No. 2 (2011). To view the full essay, you may download it here at SSRN or visit the website of Modernist Cultures.

A Shakespearean proficiency in meter and rhetoric may to F L Light be ascribed. Nearly forty of his dramas are now available on Amazon, and twenty have been produced for Audible. His Gouldium is a series of twenty four dramas on the life and times of Jay Gould which he followed with six plays on Henry Clay Frick. The whole first book of his translation of The Iliad was published serially in Sonnetto Poesia. He has also appeared in Classical Outlook and The Raintown Review. Most of his thirty five books of couplets are on economics, such as Shakespeare Versus Keynes and Upwards to Emptiness the State Expands.

This scene (from a work in progress) occurs after the Battle of Glenmalure in County Wicklow, Ireland, where the English suffered a strong defeat. Edmund Spenser was secretary to Lord Grey, the English general at that battle. Raleigh and Spenser were later to become neighbors in Munster. Spenser had vexed Queen Elizabeth when he sought to dissuade her from marriage to the Duke of Alençon in The Shepherds’ Calendar.

Dublin Castle. Enter Sir Walter Raleigh and Edmund Spenser.

Raleigh: The Phoenix re-inflames herself to stand
Alive. Like her we can re-spring ourselves
And spread our advents forth. Re-mustered loyalty
Can be enlarged. In multiplied aggression
We may go forth erelong. They’ve not undone
Regeneration nor defeated fatherly
Revival of our cause. In myriad dominance
Amain we’ll march again and recommence
Composure in this land. Colonial neighborhoods
Of Perikles in fertilized profundity
May lettered conscientiousness assert.
This island of untutored emptiness
Oxonian literacy should accept
Or Cantabrigian dogma comprehend.
No feudal diffidence in reason nor
Despotic fairyland we Englishmen
Profess. The fairest possibilities
Of free endeavors should in husbandry
Not pall on Ireland.

Spenser: If recoveries
Refresh mortality for us, then all
Of Desmond’s Munster is dispropertied
And shall in efficacious forfeiture
To Lord Grey’s officers be meted out.

Raleigh: Incentive victory therefore may as
The greediest of attainments comfort us.
Now for the landed fortune of a lord
I’d follow my triumphant appetite
And trust emotional inclemency
For gain.

Spenser: A magnate’s animosity
For main extents you mean, in deep intent
On money.

Raleigh: Gainful joyance is no jape
For me. To my increaseful happiness,
Disposed like Croesus, I would magnify
My dirt.

Spenser: The fertile presence of your voice
In Munster would immortal lucre breed.
But the uncivilized delusions seen
Among the people there no peaceable
Facilities permit.

Raleigh: That profit is
The flow where life proceeds in grace the folk
Of Ireland will perceive. Your fluency,
In clarion inculcation, should be clear
Enough for that. Unguarded politics
Allow the Queen. You should political
Decorum to consultants in the court
Concede. On lucrative georgics, not
Upon her Majesty’s conclusiveness
In marriage, should your verses touch.

Raleigh: I say proprietary sapience may
The most unsoftened pulchritude confirm
In poetry. The unmitigated tone
Of merchantry for English metre would
Be fit. Commercial intonations may
The strongest likelihood for music hold.
Singing your sagaciousness on seeds
For money, you would planters multiply
For Munster’s plenitude of various means.

Spenser: Now that convulsive wilderness consumedly
Has waned. Delinquent emptiness is left
In Munster, where abandoned decadence
Abides in death. Of starved disorder few
Survive. The naked likelihood of misery
Upon fulfilled oppression is avowed.
Now warfare to inflammable extremes,
Infesting Ireland, intervenient fire
On Desmond’s land inflicts.

Raleigh: But after war
The inflammation of vitality
We shall for savant juvenescence light
In Ireland. Verdant exploitation I’d
Advise and greenest diligence for growth.

A Shakespearean proficiency in meter and rhetoric may to F L Light be ascribed. Nearly forty of his dramas are now available on Amazon, and twenty have been produced for Audible. His Gouldium is a series of twenty four dramas on the life and times of Jay Gould which he followed with six plays on Henry Clay Frick. The whole first book of his translation of The Iliad was published serially in Sonnetto Poesia. He has also appeared in Classical Outlook and The Raintown Review. Most of his thirty five books of couplets are on economics, such as Shakespeare Versus Keynes and Upwards to Emptiness the State Expands.

The Earls of Essex and Southampton are tried together for High Treason before a jury of the noblest peers. Pleading not guilty, they strive in angry and arrant disputation with Attorney General Edward Coke and Francis Bacon. This drama is the third part of an Aeschylean trilogy and maintains the classical form of tragedy in English with seven scenes of dialogue and seven choral performances.

This trial was conducted in Westminster Hall, February 19th, 1601.

Yelverton: Now the Attorney General will speak.

Coke: My lords of courtly justice, chief pronouncers
And primest fathers of preceptive law,
Treason unsettles what is set by God.
Thrones of established exaltation it
Would overthrow. The firmest Tudor fundament
Upon immediate evanescence fades
To nothing should betrayal triumph, come
Upon premeditated compassments
Of power. Therefore to think projected thoughts
Of treason, all in violent mindfulness
For power, is death. And he that strides against
The realm, with royalty striving, must be judged
By the intent transgression of his thought.
Whoever is at arms in his array
Of might amid a kingdomed commonwealth
Founded on authentic ancestry,
Cannot be suffered by the law, perceived
As lawless as usurpers are.

Essex: But sir,
No duke would a defenseless dukedom in
This realm maintain. No helpless earldom would
An earl endure. Their settlements are set
Apart from central pertinence in Whitehall.
By vassalled mightiness they serve the main.
And undefended danger I would not
Support, assured that Lord Grey or Sir Walter Raleigh
Were raising homicides against me. Thus
I am no traitor, here a man traduced
For his defensive force.

Coke: You say, my lord,
In a protective insurrection you
Arose, forfending murder by revolt,
Who would insurgently secure yourself.
But all rebels would dissemble their revolt
Or revocation of regimes. Lord Darcy,
That traitor in the Pilgrimage of Grace,
By wrongful reprobation Thomas Cromwell
Blamed for his rebellion, that he feared
The King’s chief minister would murder him.
And like yourself Sir Thomas Wyatt to check
The Spanish from an English crown presumed
At arms his Protestant resolve, who drew
A proditory rise upon the realm.
But as a culpable defendant he
Was put to death. A guiltier prisoner
Than Wyatt you are who by her Majesty
The loftiest rooms of favor were allowed,
Made Master of the Horse at twenty two,
Admitted to the Privy Council then.
Soon as Earl Marshal of the realm you were
Preferred, and for Cadiz were given high
Command, and by her Majesty’s regard
The Azores’ were your charge. And higher yet
For Lord Lieutenant and Governor of Ireland
Her Majesty’s commission you received.
Beyond this, you had bounteous delectation
In her gifts to you, deemed more than thirty
Thousand pounds in favor. But you for pride
And inconsiderate presumption thanklessly
Repressed your memories of wealth. No man
A more ungrateful appetite, when fed
With grace, could manifest than you, who’d by
The kingliest insatiety consume
Yourself, your loyalty, and your liege. All this
Concerns her Majesty, against whose throne
Your rising throbbed. And though no Britishman
Without applause can of her Majesty’s
Protective justice speak, I must remark
That overmeasured mercy by the Queen
Will bring unmerciful exorbitance
On her. For though inhuman disobedience
Would have disabled England, yet no man
Howso wayward ever, violent ever,
Was crossly racked or tortured overthwart
For his confession. Most of them would make
Their conscientious peace with God. The truth
Came forth with faithful certitude in God,
As true religion can relinquish enmity.
Accordant attestations they conveyed,
Though sifted severally.

Miles Smith IV is a visiting assistant professor at Hillsdale College and a historian of the Old South and Atlantic World. He took his B.A. from the College of Charleston and holds a Ph.D. in History from Texas Christian University. He is a native of Salisbury, North Carolina.

Last week saw the alignment of a peculiar set of anniversaries: The Fiftieth anniversary of Churchill’s death, the seventieth of the liberation of Auschwitz by the Soviet Army, and the 208th birthday anniversary of Robert E. Lee. Sir Winston Leonard Spencer-Churchill died in 1965. One century earlier General Robert E. Lee surrendered the Army of Northern Virginia to his Federal counterpart U.S. Grant. Churchill and Lee enjoyed widespread acclaim for their conduct—Lee in the late nineteenth and both he and Churchill in the latter half of the twentieth century. In recent years deconstructing both men enjoyed being the vogue of both academic and popular commentators. Both Churchill and Lee lived their lives as traditionalists. Neither embraced the social or moral innovation of their own eras. Modern commentators degrade both for their seemingly reactionary ideals. Unsurprisingly, Churchill adored Lee (and Abraham Lincoln as well). A recent historian opined that Lee’s “tragic flaw” was that he upheld the genteel values of eighteenth century Virginia “in a society that left older ideals of nobility and privilege behind.” One might grant that Lee’s aristocratic and heavy-handed slaveholding would understandably guarantee him a fair share of detractors in the early twentieth century, but this commentator offered as his reason for deconstructing Lee a calamitous rationale:

In the long run, Lee’s decision to follow Virginia out of the Union and resign his commission from the US Army further reveals his eighteenth century sensibilities which emphasize state over country and a parochial interest in defending home and family rather than one’s nation. In choosing loyalty to his state over loyalty to his country, Lee ensured that his destiny would be tainted by defeat and the specter of treason.

The disturbing notion that one’s parochial interest in defending his home and family constitutes a “fatal flaw” ultimately saw its hellish culmination in the totalitarian nationalist regimes of the twentieth century. It was Lee’s very cultured localism, tragically tinged as it was with slaveholding, that endeared him to Winston Churchill.[1]

Before Winston Churchill assumed the premiership of the United Kingdom and before he battled the nationalist brutes ruling Germany and Italy, he wrote history. In History of the English Speaking Peoples: The Great Democracies, the fourth volume of his history of the Anglosphere, his view of American history reflected a patrician education and disposition. Never comfortable in the twentieth century, Churchill kept the values of a bygone Victorian Era well into the middle of the twentieth century. In Lee he found a similarly anachronistic gentleman of the eighteenth century living in the nineteenth. Churchill wrote that Lee’s “noble presence and gentle, kindly manner were sustained by religious faith and an exalted character.” He “weighed carefully, while commanding a regiment of cavalry on the Texan border, the course which duty and honour would require from him.” Churchill overstated Lee’s antipathy towards slavery but nonetheless seized on the Virginian’s conservative Whiggish politics. Lee knew secession to be dangerous and ill-advised “but he had been taught from childhood that his first allegiance was to the state of Virginia.” Churchill found Lee’s Old South an admirable but flawed reflection of British gentry. “There was,” said Churchill, “a grace and ease about the life of the white men in the South that was lacking in the bustling North. It was certainly not their fault that these unnatural conditions had arisen.” Churchill’s denotation of white men underscores his innate humanity. White men, he knew, built their civilization on the backs of enslaved people held in human bondage. “The institution of negro slavery,” Churchill knew, “had long reigned almost unquestioned.” Upon the basis of slavery “the whole life of the Southern states had been erected.” Churchill saw a “strange, fierce, old-fashioned life. An aristocracy of planters, living in rural magnificence and almost feudal state, and a multitude of smallholders, grew cotton for the world by slave-labour.” Churchill’s empathy for the planter class stemmed from his willingness to conceive them as a class that “ruled the politics of the South as effectively as the medieval baronage had ruled England.” Southerners who by varying degrees colluded with the capitalist system became feudal agrarians and misplaced Englishmen in Churchill’s romantic imagination. [2]

Southerners engaged in the capitalist system in the antebellum era. Not all southerners were equally capitalist, however, and the Whig planters of Mississippi and Louisiana embraced the economic, expansionistic, and modernizing nationalism of the United States in a way that horrified old planters in Virginia and Carolina. Nonetheless, the Old aristocratic Anglo-American planter communities provided Churchill with set pieces as he wrote his histories. Of Lee, Churchill somberly wrote that he “wrestled earnestly with his duty” during the secession crisis. “By Lincoln’s authority he was offered the chief command of the great Union army now being raised. He declined at once…” The immediacy of Lee’s refusal supplied Churchill with a heroically long-suffering but duty-bound Anglophone hero. Churchill made much of how Lee resigned, “and in the deepest sorrow rode across the Potomac bridge for Richmond. Here he was immediately offered the chief command of all the military and naval forces of Virginia.” Lee’s decision, thought Churchill, seemed beautiful and tragic. “Some of those who saw him in these tragic weeks, when sometimes his eyes filled with tears, emotion which he never showed after the gain or loss of great battles, have written about his inward struggle. But there was no struggle; he never hesitated.” Lee’s choice, declared Churchill, “was for the state of Virginia. He deplored that choice [and] foresaw its consequences with bitter grief; but for himself he had no doubts at the time, nor ever after regret or remorse.” Writing in 1858, Lee appeared as a forerunner of Churchill himself: warning of the disaster befalling England, but fighting determinedly when the conflict came. [3]

Sensitive to the political differences between Imperial Britain and the United States, Churchill nonetheless tried to make sense of the American Civil War and its aftermath. Churchill saw that “Radical vindictiveness” in Republican ranks “sprang from various causes. The most creditable was a humanitarian concern for the welfare of the negro.” Belief in the God-given humanity of African Americans was “shared only by a minority.” Churchill believed that “more ignoble motives were present in the breasts of such Radical leaders as Zachariah Chandler and Thaddeus Stevens.” Because they loved “the negro less than they hated his master, these ill-principled men wanted to humiliate the proud Southern aristocracy, whom they had always disliked, and at whose door they laid the sole blame for the Civil War.” But Churchill argued that “there was another and nearer point.”

The Radicals saw that if the negro was given the vote they could break the power of the Southern planter and preserve the ascendancy over the Federal Government that Northern business interests had won since 1861. To allow the Southern states, in alliance with Northern Democrats, to recover their former voice in national affairs would, the Radicals believed, be incongruous and absurd. It would also jeopardise the mass of legislation on tariffs, banking, and public land which Northern capitalists had secured for themselves during the war. To safeguard these laws the Radicals took up the cry of the negro vote, meaning to use it to keep their own party in power.

Churchill conceived of the Civil War from a perspective of a Briton deeply suspicious of the effects of modernizing industrial nationalism. His best known Liberal biographer, Lord Jenkins, painted him as a champion of Free-trade economic libertarianism and of workers as well. William Manchester, a far more conservative biographical voice, likewise understood Churchill as essentially a Free-trader whose conservatism remained confined to foreign policy. Free-trade economic views never allowed Churchill to entirely embrace the relationship between corporation and nation that characterized post-Civil War American politics. [4]

Capitalism accompanied Free-trade in Churchill’s mind, and he affirmed capitalism in his ideals about society. But he likewise displayed antipathy for the wedding of corporation and nation that followed the American Civil War. Of the captains of industry he wrote that “Carnegie and Rockefeller, indeed, together with Morgan in finance and Vanderbilt and Harriman in railroads, became the representative figures of the age,” when compared to the “colourless actors upon the political scene.” “Though the morality” of the captains of industry “has often been questioned, these men made industrial order out of chaos. They brought the benefits of large-scale production to the humblest home.” Still, Churchill saw the Gilded Age American Union as racked “by severe growing pains” and unrest. “There was much poverty in the big cities, especially among recent immigrants. There were sharp, sudden financial panics, causing loss and ruin, and there were many strikes, which sometimes broke into violence.” Most disturbing to Churchill the free trader, “Labour began to organize itself in Trade Unions and to confront the industrialists with a stiff bargaining power. These developments were to lead to a period of protest and reform in the early twentieth century.” Churchill’s deep ambivalence about the wedding of capitalism and nationalism led him the recognize “gains conferred by large-scale industry” but also to lament that “the wrongs that had accompanied their making were only gradually righted.”[5]

Churchill’s British perspective offered a nuanced perspective that stood outside the intemperate screeds of Lost Cause southerners, and the more numerous and far more influential hyper-nationalist hagiography devoted to the white northern liberators. Churchill understood that slavery constituted the great systemic evil of the nineteenth century United States and caused the Civil War. His libertarian proclivities left him unconvinced of the necessity of 800,000 dead. In this he prefigured agrarian Wendell Berry who noted in his essay “American Imagination and the Civil War” that a botched emancipation was far batter than no imagination. But Berry also noted that history demands that a botched emancipation be criticized for what was botched. David Goldfield, former president of the Southern Historical Association, declared in his America Aflame that his work was “neither pro-southern nor pro-northern. It is anti-war, particularly the Civil War.”[6]

To his credit, Abraham Lincoln regretted the Civil War’s violence in 1865 and subsequently proposed an expeditious readmission criterion for the seceded states, only to have it scuttled by Radical Republicans after his assassination. Unbeknownst to Lincoln, who genuinely seemed interested in restoring the status quo ante bellum, the war unleashed the ideological monstrosity of modern industrial nationalism on the American polity. Harry Stout recognized that industrial nationalism tarnished the war’s consequence of liberating African Americans from chattel slavery. Elliott West’s history of the Nez Perce War of 1877 posited the idea of a greater Reconstruction, whereby the Republican Party remade the entirety of the continental American polity in the image of white capitalistic, militaristic, Evangelistic Protestant nationalism. Native Americans stood in the way of the American nation, and the U.S. Army ruthlessly destroyed the last free Indian societies in the Far West. Societal transmutation on that scale necessitated violence in the name of the nation. Jackson Lears pointed out in his Rebirth of a Nation that racism on a societal scale (southern and northern) fed this nationalism driven by a political organization formally committed to black liberty. By 1900, four decades of almost uninterrupted Republican government turned the United States into an imperialistic nation-state. Though to a small degree mitigated institutionally in the United States by a lingering federalism, nationalism with its muscular industrial core eventually threw Europe into the nightmare of two world wars.[7]

Few American historians have offered an anti-nationalist vision of the Civil War. The camps seemed too rigidly defined for works such as Churchill’s to remain valid. Churchill’s vision of the American Civil War Era is at once not southern enough for Lost Cause partisans, nor is it sufficiently pro-northern for Neo-Abolitionists. Churchill saw the conflict as a tragedy. Nationalist historians and political philosophers generally counted the war a blessing; to think it a tragedy negated the benefits of union and emancipation. British Marxist Robin Blackburn exasperatedly asked why “a willingness on the part of the United States to admit the possibility that the war was not the best response” to secession or slavery was seen as condoning either.[8]

Conservative historians understandably co-opted Churchill into the pantheon of Anglo-American heroes committed to the maintenance of the Western World and to its transcendent expression of human liberty. Much of the resilience involved in Churchill revolves around the image of a nationalist military chieftain committed to Britain’s place in the world. That image is true—Churchill biographer Carlo d’Este argued that his subject was one of the humans truly born for war—but not complete. John Keegan once described Churchill as a true libertarian, and this seems an appropriate corrective given the multitude of remembrances published on this fiftieth anniversary of his passing.[9]

[6] Wendell Berry, “American Imagination and the Civil War,” in Imagination in Place (Berkeley, CA: Counterpoint, 2010), 27; David Goldfield, America aflame: How the Civil War Created a Nation (New York: Bloomsbury, 2011).

[7] Elliott West, The Last Indian War: The Nez Perce Story (Oxford and New York: Oxford University Press, 2009); Jackson Lears, Rebirth of a Nation: The Making of Modern America (New York: HarperCollins, 2009).

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